It’s more common than most people realize to have spouses, relatives or other beneficiaries die at the same time or in close proximity to the decedent. Sometimes this occurs due to a common accident (car, plane, etc.) while other times we see spouses simply loose the will to live upon the death of their husband or wife. In these circumstances, Personal Representatives and attorneys must refer to the Uniform Simultaneous Death Act to determine whether or not party passing after the decedent will qualify as a survivor.

January 2014 brought about substantial changes to the S. C. Probate Code. Included in these changes were significant amendments to the Uniform Simultaneous Death Act as found in §62-1-500 through §62-1-508. In order to be qualified as a survivor after January 2014, you must be able to show that the individual outlived the decedent by at least one hundred twenty (120) hours.

A certified copy of a death certificate is considered proof of the fact, place, date and time of death, and the identity of the decedent. If a death certificate has not been issued because the party is missing or presumed dead, a certified or authenticated copy of any record or report of a governmental agency is considered evidence of the status and of the dates, circumstances, and places disclosed by the record or report. If neither of these is available, the fact of death may be established by clear and convincing evidence, including circumstantial evidence. For example, a person who is absent for a continuous period of five years, during which he or she has not been heard from, and whose absence is not satisfactorily explained after diligent search or inquiry, is presumed to be dead. The death is presumed to have occurred at the end of the period unless there is sufficient evidence for determining that death occurred earlier.

The time of death can become a highly contested matter when it might substantially change the beneficiaries of the estate. A party litigating this issue should understand that although a death certificate may be considered proof of death, another party may contest its accuracy. In order to successfully do so, they too would have to meet the clear and convincing evidence standard to dispute the document.

​Now that you’re armed with a better understanding of how to establish time of death, our next post will explain how the January 2014 changes have expanded its relevance to include both intestate (no last will exists) and testate (the decedent left a will) estates.

In our first post on this topic, we discussed how to determine whether or not an heir or devisee survived the decedent. This post will explain how survival alters the administration and distribution in an estate. Effective January 1, 2014, the Uniform Simultaneous Death Act includes both intestate (without a will) and testate (with a will) estates. It can also now alter non-probate transfers as explained below.

In intestate estates, if the party is determined to have survived the required 120 hours after the decedent, then they will take as an heir under the intestate statute. If they have not, they loose the right to take as well as the right to file a claim for exempt property. Application in a testate estate can be a little more complicated as it can cause the spouse’s estate to loose the ability to claim both exempt property and elective share claims. However, in testate estates, the governing instrument (will, trust, etc.) can override the act such that survival by 120 hours is not required when:

• The governing instrument contains language dealing explicitly with simultaneous deaths or deaths in a common disaster and that language is operable under the facts of the case;

• The governing instrument expressly indicates that an individual is not required to survive an event, including the death of another individual, by any specified period or expressly requires the individual to survive the event for a specified period; but survival of the event or the specified period must be established by clear and convincing evidence;

• The imposition of a one hundred twenty hour requirement of survival would cause a nonvested property interest or a power of appointment to be invalid under other provisions of the Code. In this situation, survival (although not by 120 hours) must be established by clear and convincing evidence;

• The application of the 120 hour requirement to multiple governing instruments would result in an unintended failure or duplication of a disposition; Similar to above, survival of any period must be established by clear and convincing evidence;

• The application of the 120 hour requirement would deprive an individual or the estate of an individual of an otherwise available tax exemption, deduction, exclusion, or credit, expressly including the marital deduction, resulting in the imposition of a tax upon a donor or a decedent’s estate, other person, or their estate, as the transferor of any property;

• The application of a one hundred twenty hour requirement of survival would result in an escheat.

​In addition to the application of the 120 hour rule to testate estates, it now also alters how real property held jointly with rights of survivorship passes. If it is not established by clear and convincing evidence that one of two co-owners with right of survivorship survived the other co-owner by the 120 hours, one-half of the property passes as if one had survived by at least one hundred twenty hours and one-half as if the other had survived by at least one hundred twenty hours. In other words, the right of survivorship is essentially changed to a joint tenancy where each parties ownership interest passes through their respective estate.

While the Uniform Simultaneous Death Act has new amendments, they aren’t complicated to an experienced probate attorney. If you have any questions about its application, seek out an attorney for a consultation on its application.